State v. Zoller

THIS
OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Appellant,

v.

Joseph Leon Zoller, Respondent.

Appeal From Lancaster County

Brooks P. Goldsmith, Circuit Court Judge

Unpublished Opinion No. 2011-UP-442

Submitted October 1, 2011 – Filed October
11, 2011

AFFIRMED

J. Benjamin Aplin, of Columbia, for
Appellant.

Appellate Defender Kathrine Hudgins, of
Columbia, for Respondent.

PER CURIAM: Joseph
Leon Zoller pled guilty to second-degree criminal sexual conduct with a minor
(CSC) and was sentenced to five years' imprisonment in May 1996.  After serving
eighty-five percent of his sentence, Zoller was released from prison and began a
community supervision program (CSP).  Subsequently, the circuit court revoked Zoller's
CSP several times and ordered a period of incarceration for each revocation.  On
March 17, 2008, the circuit court again revoked Zoller's CSP, sentenced
him to one year of imprisonment, and imposed lifetime electronic monitoring.  On
March 4, 2009, the circuit court issued an order releasing Zoller from imprisonment
pursuant to State v. McGrier[1] because Zoller had served an additional 1,313 days' imprisonment beyond his
original five-year sentence.  The circuit court's order also vacated the
previous circuit court order imposing lifetime electronic monitoring and
dismissed the arrest warrant for violating the terms and conditions of his
electronic monitoring.  The State appeals this order.[2]  We affirm.[3]

CSC is considered a "no parole" offense, and
therefore, a person convicted must serve eighty-five percent of the "actual
term of imprisonment imposed" before becoming eligible for CSP.  S.C. Code
Ann. § 24-13-150(A) (Supp. 2010).  In addition, a person convicted of a "no
parole" offense must complete CSP upon release from imprisonment.  S.C.
Code Ann. § 24-21-560(A) (2007).  CSP can last no longer than two continuous
years.  § 24-21-560(B) (Supp. 2010). "A prisoner who is sentenced for
successive revocations of the community supervision program may be required to
serve terms of incarceration for successive revocations . . . and may be
required to serve additional periods of community supervision for successive
revocations . . . ."  § 24-21-560(D) (Supp. 2010).  "The maximum
aggregate amount of time a prisoner may be required to serve when sentenced for
successive revocations may not exceed an amount of time equal to the length of
incarceration imposed limited by the amount of time remaining on the original 'no
parole offense.'"  Id.  "The prisoner must not be incarcerated
for a period longer than the original sentence."  Id. 

We find the circuit court properly vacated the
previous circuit court order imposing lifetime electronic monitoring.  Zoller was no longer subject to CSP or any of its
direct or collateral consequences at the time of the March 2008 hearing because
Zoller had served the entirety of his five-year sentence by October 2003. 
Here, Zoller served the requisite eighty-five percent of his five-year sentence
from May 8, 1996, to May 12, 2000.  During this initial incarceration, Zoller
served 1,678 days of his 1,825-day sentence.  Upon his release from jail in
2000, Zoller only had 147 days remaining on his sentence.  On June 2, 2003, the
circuit court revoked Zoller's CSP and sentenced him to one year of
imprisonment.  Zoller was released on April 30, 2004, after serving 335 days,
which was 188 days in excess of his five-year sentence.  See State v.
McGrier, 378 S.C. 320, 331-32, 663 S.E.2d 15, 21 (2008) (holding
section 24-21-560(D) limits the amount of time a prisoner can be incarcerated
after a CSP revocation to the length of the remaining balance of the sentence
for the "no parole offense" and noting the sentence for a CSP
revocation cannot exceed the "aggregate period of time that extended
beyond the unsuspended portion of the original sentence").  Because Zoller
was no longer subject to CSP or any of its direct or collateral consequences at
the time of the March 2008 hearing, Zoller could not be subject electronic
monitoring or any violations arising out of the improper imposition of electronic
monitoring. Thus, the arrest warrant was also invalid. 

AFFIRMED.

HUFF,
PIEPER, and LOCKEMY, JJ., concur.

[1] 378 S.C. 320, 663 S.E.2d 15 (2008).

[2] We find the State's argument concerning whether McGrier applies to collateral consequences of CSP revocations is immaterial to this
case.  The supreme court did not draw any distinction between direct or
collateral consequences of CSP violations in McGrier. Furthermore, the
issue of whether the rule in McGrier applies to collateral consequences
is irrelevant here.  No direct or collateral consequences of CSP revocations
could apply to Zoller because Zoller was no longer subject to CSP at the time
of the March 2008 hearing.

[3] We decide this case without oral argument pursuant to
Rule 215, SCACR.